Feltovich v. City of Sharon

• Decision Date: 28 November 1962
• Citation: 409 Pa. 314,186 A.2d 247
• Parties: John FELTOVICH and Mary Helen Feltovich v. CITY OF SHARON, a Third-Class Municipal Corporation, Appellant.
• Court: Pennsylvania Supreme Court

Page 247

186 A.2d 247

409 Pa. 314

John FELTOVICH and Mary Helen Feltovich v. CITY OF SHARON, a Third-Class Municipal Corporation, Appellant.

Supreme Court of Pennsylvania.

Nov. 28, 1962.

Philip E. Brockway, Brockway & Brockway, Sharon, for appellant.

Martin E. Cusick, Donald R. McKay, Wiesen, Cusick, Madden, Joyce, Acker & McKay, Sharon, for appellees.

Before BELL, C. J., and MUSMANNO, JONES, EAGEN, O'BRIEN and KEIM, JJ.

KEIM, Justice.

This is an appeal from the Order of the Court of Common Pleas of Mercer County. The said court granted the plaintiffs-appellees' motion for a new trial on the basis that the verdict was against the weight of the evidence.

The pertinent facts in this trespass action which are relative to this appeal are as follows: The accident out of which this action arose occurred on October 20, 1958 at an intersection in the City of Sharon, Mercer County, Pennsylvania. The two vehicles involved were stopped for a red light, one behind the other and both were faced slightly uphill in the same direction. The first vehicle was a truck owned by the City of Sharon and operated by one of its employees, Ernest Iannelli. Immediately behind this truck was an automobile owned by John Feltovich, one of the plaintiffs, and operated by his wife, Mary Feltovich, the other plaintiff. While the vehicles were in a stopped position, the driver of the truck received a call on a two-way radio in the truck. During the ensuing conversation the driver released the foot brake causing the truck to drift back into the Feltovich automobile.

This collision caused $32.85 damage to the automobile and Mrs. Feltovich alleged that the impact threw her forward against the steering wheel. Mrs. Feltovich was four months pregnant at the time. The testimony reveals that the prospective mother was seriously upset over the accident, however, this incident had no apparent adverse effect on the birth of the child. Mrs. Feltovich also alleges injury to her back which was finally diagnosed as a herniated disc. Some of the medical testimony implies that this serious spinal injury may have been caused by childbirth rather than the accident.

This trespass action was instituted to recover for Mrs. Feltovich's personal injuries and the property damage incurred to Mr. Feltovich's automobile. The jury returned a verdict for the defendant, thereupon the plaintiffs filed a motion for a new trial which was allowed by the lower court on the grounds that the verdict was against the weight of the evidence.

The verdict for the defendant and against John Feltovich, as well as Mary Feltovich, indicates that the jury found the defendant to be free of negligence. John Feltovich could not have been contributorily negligent. Therefore, even if the jury did find contributory negligence on the part of the plaintiff, Mary Feltovich, they should have at least found a verdict for the damage to the automobile. The failure to find negligence on the part of the defendant was a shock to the trial judge's sense of justice. This is obvious from the following quotations taken from the trial judge's charge:

'In this case, the defendant, as the Court views the testimony and the statements of the defendant's counsel, has agreed with the plaintiff that they were negligent in allowing their car or truck to drift back into the automobile of the plaintiffs. That rather effectively removes the problem which you would ordinarily have in determining whether there was liability in this case. If you have any doubts on that matter, you will resolve them, but as the Court understands them, and you are not bound by the Court's understanding of it, the liability in this case has been admitted. * * * The defendant's counsel has agreed that the plaintiff should...